Last Wednesday, that is 3 March 2016, Witness M, to whom I will refer to as the respondent, pleaded guilty to two extremely serious offences and asked that a third be taken into account in sentencing her. At that point, she had been on bail since 26 March 2014 with the exception of a period of around one month from 27 October 2014 until 27 November 2014. Once her plea was entered, the learned Crown Prosecutor made a detention application pursuant to s 50 of the Bail Act 2013 (NSW) as amended by the Bail Amendment Act 2014 (NSW). That application was adjourned until today to allow her to gather the evidence that she needed to resist the detention application. In adjourning the matter, I noted the provision in s 50(5) which is a requirement for reasonable notice.
The evidence on the bail application consisted of the material tendered by the prosecutor on sentence (exhibits AC-1 to AC-6), the prosecution's tender bundle (ex AC-7) and the respondent's tender bundle (ex AC-A). Both the Crown Prosecutor and Mr Khatiz, who appears for the respondent, provided helpful written and oral submissions.
The offences to which the respondent pleaded guilty last week were (1) being an accessory before the fact to murder and (2) being an accessory before the fact to the serious indictable offence of discharging a firearm with intent to cause grievous bodily harm. Those offences carry maximum penalties of life imprisonment and 25 years respectively. The offence to be taken into account is an offence of participating in a criminal group, namely the Brothers for Life at Blacktown.
The facts and Witness M's role place the offences at the upper echelon of objective seriousness contemplated by the entirety of the criminal law. Because the first charge carries a maximum penalty of life imprisonment, s 16B(1)(a) provides that it is a "show cause offence" under the Bail Act. This means, by reference to s 16A, that bail must be refused "unless the accused person shows cause why her continueddetention is not justified".
In DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 the Court of Appeal said, at [26], that a guilty verdict:
"…is plainly germane to the question of whether cause be shown why an offender's continuing detention is unjustified since the presumption of innocence which operated in his or her favour before the jury returned its verdict has been rebutted by that verdict."
The same consideration applies where an offender enters a plea of guilty: see for example R v Farrell [2015] NSWSC 1082 (McCallum J). As a number of cases decided in the Court of Criminal Appeal demonstrate, the show cause requirement constitutes a considerable hurdle for an applicant who seeks bail: see for example, DPP v Boatswain [2015] NSWCCA 85 and DPP v Brooks [2015] NSWCCA 190. In each of those cases, compelling personal cases existed - for example Mr Boatswain was dying of cancer - and yet the Court (in each case constituted by the Chief Judge at Common Law, Johnson and RA Hulme JJ) were not persuaded that the offender had shown cause.
On the other hand, as Garling J said in JM v R [2015] NSWSC 978 at [39] to [40]:
"However in discharging this onus, the applicant is not required to show special or exceptional circumstances. The provision of s 22(2) of the Act makes it plain that the show cause test is separate and distinct from the demonstration of special and exceptional circumstances. The applicant does not need to show special or exceptional circumstances to show cause why their detention is not justified.
Similarly, the inclusion of a requirement to show cause does not mean that the legislature has declared an intention that bail will not ordinarily or normally be granted where a show cause requirement exists. After all, the terms of the legislation do not permit a grant of bail unless cause can be shown, and equally the legislation does not restrict the matters which can be considered when a court determines the show cause test. The authorities of long-standing in this Court on previous, and now repealed or superseded, versions of the Act, called for a court, when considering whether bail ought be granted when there was a presumption against bail, to concentrate attention on the strength of the Crown case and to give little, if any, weight to factors which are ordinarily present or common to bail applications where no presumption existed. See: DPP (Cth) v Germakian [2006] NSWCA 275 at [9]-[11]."
Further, as Johnson J stressed in a case under the Bail Act 1978 (NSW), where an applicant charged with murder was required to establish exceptional circumstances justifying the grant of bail, it is open to an offender to establish such circumstances (or, under the present regime, to show cause) by relying on a combination of circumstances: see R v Young [2006] NSWSC 1499 and my adoption of that process of reasoning in R v Boyd [2015] NSWSC 1065 at [18] to [19].
In addition to the show cause test, the Bail Act also requires the Court to consider whether there are bail concerns (see s 17) and whether those concerns amount to unacceptable risks (see s 19). If there are unacceptable risks, bail must be refused. In determining the question under s 19, the Court is to have regard to the list of matters referred to in s 18 of the Bail Act. The concerns and risks as identified in s 17 and 19 of the Act are that the person may (a) fail to appear at any proceedings for the offence or (b) commit a serious offence or (c), endanger the safety of victims, individuals or the community or (d) interfere with witnesses or evidence.
The Crown's primary position is that the respondent has not shown cause pursuant to s 16A but further submits that the first three of those concerns or risks that I have just identified exist in the present case. It is accepted by the Crown that there is no unacceptable risk of the respondent interfering with witnesses.
An important matter of law to be borne in mind is that the show cause requirement must not be conflated with the unacceptable risk test. It is a two-stage process involving different tests. This was made clear in the leading judgment on the provision which was a decision by the Court of Appeal in Tikomaimaleya at [20], [24]-[25]:
"Two matters may be noted and emphasised from this overview of the provisions of the Bail Act 2013. First, if the offence in question is a "show cause" offence, there is a two-step process: cause must first be shown as to why detention is not justified under Div 1A of Pt 3 and, if it is shown, the bail authority must then consider the "unacceptable risk" test in Div 2 of Pt 3. Secondly, there is an exhaustive list of matters in s 18 that must be considered in relation to the latter but the Bail Act 2013 does not prescribe what must or might be considered in relation to the former.
…
We accept that in many cases it may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test and that, if there is nothing else that appears to the bail authority to be relevant to either test, the consideration of the show cause requirement will, if resolved in favour of the accused person, necessarily resolve the unacceptable risk test in his or her favour as well.
It is important, however, that the two tests not be conflated. Determination of the unacceptable risk test is not determinative of the show cause test. The show cause test by its terms requires an accused person to demonstrate why, on the balance of probabilities (s 32), his or her detention is not justified. The justification or otherwise of detention is a matter to be determined by a consideration of all of the evidence or information the bail authority considers credible or trustworthy in the circumstances (s 31(1)) and not just by a consideration of those matters exhaustively listed in s 18 required to be considered for the unacceptable risk assessment."
In those passages, one of the things that the Court said was that if the show cause requirement is resolved in favour of the accused person, that will "necessarily resolve the unacceptable risk test in his or her favour as well". It seems that this comment is not universally true, as is shown by the decision in R v Mawad [2015] NSWCCA 227. In that case, a majority (Gleeson JA and Beech-Jones JJ; Adams J dissenting) overturned my decision to grant conditional bail and found that the applicant had shown cause why their detention was not justified but then found that he posed an unacceptable risk of committing serious offences. Both of those cases demonstrate the importance of not conflating the show cause requirement with the unacceptable risk test, although, as was stressed in the earlier case, the factors relevant to the latter may be important in resolving the former.
In delivering this judgment ex tempore, I indicated that I would incorporate parts of the agreed facts that have been tendered on sentence. To obtain a broader overview of the facts of the case and the evidence I have received in the course of a lengthy pre-trial hearing, see R v Qaumi and Ors (AVL) [2015] NSWSC 1711 and R v Qaumi and Ors (No 3) (Severance and separate trial) [2016] NSWSC 16. The following are some snippets from the agreed statement of facts (Ex AC-3) upon which the respondent is to be sentenced:
COUNT 1
4. The offender, Witness M, has known Bassam HAMZY for over 15 years, previously dating him while he was in custody. In early 2013, the offender was employed by the firm Churchill lawyers to assist Bassam Hamzy is prison. Part of her role required her to visit Bassam Hamzy in custody as a 'legal representative,' meaning their discussions were privileged. During these visits, Bassam Hamzy would direct the offender to conduct a range of personal tasks on his behalf. One of these tasks involved obtaining money from Bassam HAMZY'S cousin, Mohammed 'Hamoudie' HAMZY. Through the completion of this task, the offender and Mohammed 'Hamoudie' HAMZY became friends. In her role assisting Bassam HAMZY, the offender also met Farhad QAUMI.
…
20. … on the afternoon of 28 October 2013, Farhad QAUMI, Jamil QAUMI, Mohammed KALAL, Witness L and Witness J attended the Anytime Fitness gym at Parramatta. The offender arrived and approached Farhad QAUMI. Farhad QAUMI and the offender walked away from the group and spoke privately in a location near the gym. Farhad QAUMI spoke to the offender about his dislike for Mohammed 'Hamoudie' HAMZY. The offender told Farhad QAUMI that she had heard that Mohammed 'Hamoudie' HAMZY was planning to "get" Farhad. The offender heard this information from her ex-husband, Hamad. Farhad QAUMI became more angry and responded by saying "I was going to get him anyway but this has given me the excuse."
21. …QAUMI summoned Witness J to join him and the offender. QAUMI asked Witness M to repeat what she had just said. Witness M stated that she had heard that Mohammed 'Hamoudie' HAMZY was trying to have Farhad QAUMI killed.
…
29. Farhad QAUMI directed the group that were present that they had to kill Mohammed 'Hamoudie' HAMZY for him. QAUMI told the group that they were his soldiers and asked if they would rather see him dead, or them dead. He told them to "go in there and get rid of them". In discussions, Farhad QAUMI asked the offender about Mohammed 'Hamoudie' HAMZY's bail conditions. The offender said that she had heard that he had bail conditions requiring him to be home before 12pm. The offender also said that HAMZY generally sat in the garage of his home with his boys.
30. QAUMI also told the group that he had seen Mohammed 'Hamoudie' HAMZY earlier in the day, and that he was wearing a black baseball cap. As most present didn't know what Mohammed 'Hamoudie' HAMZY looked like, Farhad QAUMI provided a description of him.
31. Farhad QAUMI, supported by Mumtaz QAUMI, directed that Witness L, Jamil QAUMI and Mohammed ZARSHOY would do the shooting and that Witness J would be the driver. However, as the offender knew where Mohammed 'Hamoudie' HAMZY lived and had been there before, Farhad QAUMI directed her to drive. Farhad told the offender, "You're going to fucken drive cause you're the one that told me [about HAMZY's plan to kill Farhad]" and that "This will make sure you don't tell anyone".
…
38. Farhad and Mumtaz QAUMI then directed Jamil QAUMI, Witness L and Mohammad ZARSHOY to get into the white Nissan Tiida which was to be driven by the offender. Witness L was armed with a 0.45 calibre firearm handed to him by Farhad QAUMI. Both ZARSHOY and Jamil QAUMI were armed with 0.38 calibre revolver firearms. All three firearms were loaded. Whilst Mumtaz was there, Farhad said to everyone in the vehicle, "I've told you all what to do at the park, make sure you get him and you don't miss. You've only got one chance".
39. All of the group travelling in the white Nissan Tida were instructed to leave their mobile telephones behind so that they couldn't be used by police to track their movements. The phones were left in the possession of Mumtaz QAUMI.
40. The offender then drove the vehicle accompanied by Jamil QAUMI (front seat passenger), Witness L and ZARSHOY (both seated in the rear). All three males were dressed in dark clothing, had balaclavas to wear and Jamil QAUMI and ZARSHOY also had gloves.
41. At about 11:30pm on 28 October 2013 Mahmoud HAMZY and Omar AJAJ visited their cousin Mohammed 'Hamoudie' HAMZY at his residence at 28 Bardo Circuit, Revesby Heights. They socialised inside the garage area of the residence with Mehmet YARAR, Ahmed ALI, Ziad HIJAZI and Khaled SOUEID.
42. At about 12.30am on 29 October 2013, the offender drove the white Nissan Tida into Bardo Circuit. HIJAZI, SOUEID and ALI left number 28 in a white Kia Cerato at approximately the same time. A CCTV camera located at the front of 46 Bardo Circuit captured the white Kia Cerato driving out of Bardo Circuit after leaving number 28. As the Kia Cerato rounded the corner at the bottom end of Bardo Circuit, they swerved to miss the white Nissan Tida. The Nissan Tida was being driven up the 'one way' street in the wrong direction. That vehicle still contained the offender, Jamil QAUMI, Mohammed ZARSHOY and Witness L.
43. The Nissan Tida then waited near 28 Bardo Circuit until past midnight to ensure Mohammed 'Hamoudie' HAMZY would be home. Whilst waiting, the occupants of the car discussed their weapons and Jamil QAUMI said, "my brother sent me to do this so we are going to do it". The offender then drove the vehicle into Bardo Circuit, stopping near the cul-de-sac and pointed out to the boys HAMZY'S garage. Before getting out of the car, Jamil QAUMI directed the offender, "stay here, keep the car running, when you hear the shots drive up to us".
44. CCTV then captured the Nissan Tida stopping in a turning area at the front of number 46 before three people dressed in dark clothing and wearing balaclavas alighted from the vehicle and started walking up the street towards number 28. These three people were Jamil QAUMI, Mohammed ZARSHOY and Witness L. As they walked up Bardo Circuit, they were followed by the Nissan Tida. The vehicle was being driven with its lights off, by the offender.
45. Mohammed 'Hamoudie' HAMZY, Mahmoud HAMZY, Omar AJAJ and Mehmet YARAR were still socialising in the garage of number 28 at this time. Mahmoud HAMZY and Mohammed 'Hamoudie' HAMZY are similar in appearance and Mahmoud HAMZY was wearing a black baseball cap at that time.
46. When Jamil QAUMI, Mohammed ZARSHOY and Witness L reached the front of number 28, they ran into the garage and began firing their firearms. As they did this, Mohammed 'Hamoudie' HAMZY and Mehmet YARAR ran for a door leading into the house and escaped unscathed.
47. Both Mahmoud HAMZY and Omar AJAJ both fell to the ground after being wounded by bullets.
48. Jamil QAUMI then approached Mahmoud HAMZY and fired at least one bullet into his head from close range.
49. Jamil QAUMI, Witness L and Mohammed ZARSHOY then ran back out to the white Nissan Tida which was waiting at the front of the house with the engine running. Jamil QAUMI got back into the front passenger seat, Witness L got into the rear left hand seat and Mohammed ZARSHOY into the rear right hand seat. The offender then sped off in the vehicle. As the vehicle was driving off, ZARSHOY fired at least one further shot from the vehicle in the direction of the house.
50. Whilst in the vehicle, Jamil QAUMI said, "Lets go back to F, I got him, I got him, I killed LC, I saw the black hat and I just started shooting at him". Witness L was saying, "I got him too". Jamil QAUMI repeated, "I killed him, I killed LC, did you see all the blood coming out of his head, he is dead for sure, I think the other one is dead too."
51. The offender drove the white Nissan Tida to the Penshurst Railway Station. As they were driving away, the group removed their gloves and balaclavas and placed them into a plastic bag and handed it to Witness L. They wiped their fingerprints off the firearms and placed them in another bag that was given to the offender. At Penshurst Railway Station, the offender stopped the vehicle and got out with the weapons. As she walked off, Jamil QAUMI instructed Witness L to follow her to see where she was going. Witness L tried to do so, but lost sight of her. When he returned to where the white Nissan Tida had been parked, it was gone."
…
COUNT 2
69. On 5 November 2013, Farhad QAUMI went to Thailand for a period of 16 days. Prior to him leaving, he told the offender that he wanted to "get" Michael ODISHO, Masood ZAKARIA, Mahmoud SANOUSSI, Abdul ABU-MAHMOUD and Mohammed HAMZY's brothers. The offender knew most of these people and considered them her friends.
70. During the afternoon of Wednesday 6 November 2013, Jamil QAUMI directed Witness C to hire a rental motor vehicle. At about 7:05pm, Witness I and Witness C were captured on CCTV footage renting a vehicle from Sydney South West Car Rentals, Canterbury Road, Bankstown. The vehicle was a 2006 blue Mazda 3 with 4 doors and dark windows, NSW registration CPQ20C.
71. At about 7:24pm, the offender was observed by police meeting Jamil QUAMI at Thornleigh McDonald's car park. Jamil QAUMI was driving a silver Honda Accord NSW registration BLN94P. The offender was driving a grey Mazda CX-5, NSW registration CMV32Y. Jamil QAUMI told the offender that Farhad QAUMI was checking if she had heard anything about the "lebos" saying anything about him and the murder of Mahmoud HAMZY. This meeting continued until 7.38pm when the offender and Jamil QAUMI left in their respective vehicles.
72. At about 7.40pm Witness I, at the direction of Jamil QAUMI, spoke with Witness D and organised to meet him at Lidcombe Railway Station. At about 7.49pm Witness I told Jamil QAUMI that he had collected Witness D and they were heading to Mohammed KALAL'S place. Jamil QAUMI directed Witness I "Come to Moey's now." At about 7.53pm, police observed Jamil QAUMI arrive in the vicinity of Mohammad KALAL's residence at Hume Avenue, Ermington in the silver Honda. A short time later, Witness D and Witness I attended the same location in the hired Mazda 3 and met with Jamil QAUMI.
73. About 8.17pm, police observed vehicles BLN94P, CPQ20C and CMV32Y arrive at River Road West, Harris Park. Witness D and Witness I met with the offender, Mumtaz QAUMI and Jamil QAUMI. At this location, Mumtaz QAUMI told the offender that he had heard something about "Abs" getting either his or Farhad's home address on the Central Coast. The offender told the group that she had heard that "Abs" has a friend who works in real estate and that it wouldn't be difficult to obtain any addresses. Mumtaz QAUMI said that they were going to "get" Abs. The offender understood this to mean that they would shoot him. Mumtaz QAUMI ordered Jamil QAUMI, Witness I and Witness D to carry out the shooting. In doing so, he screamed at them not to "fucking miss or mess this one up".
74. During this meeting, the group discussed locating a screwdriver. The screwdriver was to be used to change the number plates of the hire vehicle. This was an act in preparation to conceal the identity of the vehicle, as it was to be used in the offence. The offender checked her car but was unable to locate one.
75. About 8.24pm, Jamil QAUMI, Mumtaz QAUMI, Witness I, Witness D and the offender drove to West Terrace, Bankstown to view the location for the intended shooting. The offender drove past the Chokolatta café where the 'target', Abdul ABU-MAHMOUD was sitting. The offender pointed him out and his vehicle (parked in the driveway) to Witness I and Witness D. Whilst driving it was reinforced by one of the QAUMI'S that the target "will be shot tonight". Discussions took place as to the route they should drive after the offence.
76. At about 9.18pm, the offender, Mumtaz QAUMI, Witness I and Witness D returned to Harris Park. Police observed vehicle CPQ20C park at that location. A short time later, vehicle EVO7FK arrived at the location. Jamil QAUMI and Mumtaz QAUMI then gave directions to Witness I and Witness D to collect firearms and carry out the shooting.
77. Mumtaz QAUMI asked the offender if she knew what time the café shuts. He also wanted to know what time Abdul ABU-MAHMOUD usually left the café. The offender said that she didn't know exactly but she knew it was late. Mumtaz Qaumi told the offender "we're gonna get this cunt tonight."
78. At about 10.13pm, Witness I and Witness D drove to nearby Jones Park where they met with Mumtaz QAUMI, Jamil QAUMI and Mohammad KALAL. At this location police observed vehicle BLN94P and CPQ20C as being present. A short time later Mumtaz and Jamil QAUMI, Mohammed KALAL, Witness I and Witness D travelled to Bankstown in those vehicles. These vehicles were captures on CCTV on West Terrace, Bankstown at 10:46pm.
79. Upon arriving at West Terrace, Bankstown, Mohammed KALAL and Witness D regrouped in the Mazda 3 with Witness I. However, at this point Mumtaz QAUMI and Jamil QAUMI left the location in vehicle BLN94P.
80. At about 11.00pm, Jamil QAUMI sent a message to Witness I directing, "afterward come to Merrylands Park."
81. At about 11.15pm, the Mazda 3 was driving on West Terrace Bankstown. It was parked in several different locations as KALAL, Witness I and Witness D conducted a final reconnaissance of the Chokolatta Café.
82. About 12.15am on 7 November 2013, Abdul ABU-MAHMOUD, Khalil KHALIL and Hassan SOUEID were seated in a blue BMW sedan parked outside the Chokolatta Café at 2A West Terrace, Bankstown. They were preparing to reverse onto West Terrace. Abdul ABU-MAHMOUD was seated the front passenger seat, Khalil KHALIL was in the driver's seat and Hassan SOUEID was seated in the rear.
83. Witness I drove the Mazda 3 and stopped behind the BMW, blocking it from exiting. Mohammed KALAL was in possession of the 0.38 calibre revolver and Witness D was in possession of the pump action shotgun.
84. Mohammed KALAL and Witness D then exited their vehicle. Witness D ran to the driver's side of the BMW, while KALAL ran to the passenger side.
85. At close proximity to the BMW, Witness D fired a number of shots from the pump action shotgun into the driver's side. These shots hit numerous areas, including the driver's seat head rest, which was completely destroyed. On hearing the first shots KHALIL leant down in the vehicle to protect himself. He did not sustain any serious injury.
86. At the same time, Mohammed KALAL, who was also in close proximity, fired a number of shots from the revolver into the passenger side of the vehicle.
87. ABU-MAHMOUD, seated in the front passenger seat, suffered wounds caused by the shotgun to the right shoulder, back, neck, scalp and right hand.
88. Hassan SOUEID, who was seated in the rear of the vehicle, also suffered shotgun related injuries, to the back of his scalp, right bicep and right posterior shoulder as a result of the shooting.
The matter to be taken into account (participating in a criminal group) encompasses the respondent's involvement in yet another shooting incident, at Greenacre on 29 November 2013.
These facts demonstrate that the respondent was a central and critical player in both the planning and execution of two brutal and terrible crimes. Her involvement was pivotal to each and she may well be seen as the instigator of a period of unlawfulness and violence which lasted for at least a number of weeks, if not months. Had she not been passing information from one side of the so called "turf war" to the other, the events may not have escalated as they did. According to the fact sheet, the respondent says that she participated because of fear for her own safety. However that issue may be resolved, the facts as agreed mean that a substantial custodial sentence will be the inevitable outcome of the sentencing hearing. Just by way of example, I sentenced a co-offender to a sentence of four years and ten months in respect of the events giving rise to count 1 against the respondent. The co-offender was charged with a less serious offence (shoot with intent to inflict grievous bodily harm) and received a 60 per cent discount for his plea of guilty and assistance. While different factors arise in each case, there is little doubt that a long gaol sentence will be imposed. However, as McCallum J pointed out in the case of Farrell at [16]:
"It is important to note that the determination of the present application must not be approached on the basis that it would be sensible or expedient for the respondent to begin serving an apparently inevitable custodial sentence now rather than at a later point when he is duly sentenced by the District Court. That is not the test. The task for the Court in the present application is to undertake the evaluative judgment to which I have referred, having regard to any relevant considerations under s 18. However, as explained by the Court in Tikomaimaleya, the fact that the present respondent has admitted his guilt to a large number of offences plainly informs the consideration of those factors."
Similar considerations apply here.
I have remarked when sitting in the Bail Court that the precise content of the show cause requirement will vary depending on the seriousness of the offence and the basis upon which an offender or accused is caught by the provisions of ss 16A and 16B. For example, cases can arise under s 16B(1)(h) where an offender is charged with a "serious indictable offence" while on bail for a quite minor offence. In such as case, the show cause requirement might more readily be overcome. However, the present case is at the other end of the spectrum. The seriousness of the present offence, the plea of guilty and the inevitability of a lengthy gaol sentence mean that the show cause requirement in the present case represents an extremely high hurdle, irrespective of any views that I may hold as to the respondent's likelihood of appearing, the likelihood that she will commit further offences or whether she constitutes a risk to the community.
The respondent has a criminal history which is before me in exhibit AC-4. That criminal history consists of a number of entries going back to the Children's Court in the year 2000. She was dealt with without conviction for possessing a prohibited weapon as an adult in 2001. She was fined for assaulting a police officer in 2004. She was given an 18 month supervised bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for assault occasioning actual bodily harm in 2008 and fined for the possession of a prohibited drug and fined in 2007.
That criminal history is not a substantial one but the lack of a substantial criminal history is of less significance in the present case in view of the respondent's involvement with a group of people who, on the Crown case, were operating at the highest level of violence and lawlessness. In doing so, she breached the trust reposed in her by the solicitor who employed her and also betrayed the trust of the Department of Corrective Services. For some time she was entering the prison to meet a notorious criminal (Bassam Hamzy) and running errands for him outside of the gaol. All of that while purporting to be acting as a paralegal engaged by an apparently reputable firm of solicitors.
As I have said, the respondent has been on bail for many, many months. She was initially charged with an offence arising out of what has become count 2 on the present indictment on 26 March 2014 and bail was refused. Around a week later, on 2 April 2014, a Magistrate at Parramatta granted her bail on various, quite stringent conditions and she remained on that bail until 27 October 2014. On that date, she was charged with the murder of Mr Hamzy, who is the victim nominated in the first count on the current indictment. That murder charge has now become, at least in form if not content, a charge of accessory before the fact to murder. I have no doubt the reason for that, and the relevant distinction, will become clear to me in the course of the sentencing hearing.
In any event, bail was refused on 27 October 2014 and again on 10 November 2014 by a Magistrate at the Burwood Local Court. However, on 27 November 2014, bail was granted by Campbell J on the following conditions:
1. To be of good behaviour
2. Report to Marrickville Police daily between 8:00am and 8:00pm
3. Surrender passport to Parramatta Court Registry by 4:00pm on 27 November 2014 (noted this has already been complied with from an earlier occasion)
4. Not to approach any points of international departure and not to apply for any travel documents
5. Reside at [redacted].
6. Not to associate or contact by any means any relative of any alleged co-offender
7. Not to go within 1km of any correctional facility
8. Not to attempt to contact any Crown witness by any means including any telecommunication device
9. Acceptable person to enter into agreement to forfeit the sum of $1,400,000.00 if the accused fails to comply with the bail undertaking
10(1). Not to leave residential premises for any reason except to report to the police
station and to attend court and to do so by the most direct route;
10(2). To attend legal appointments as arranged by Mr Khatiz details of which are to
be provided to Det Sgt Glen Browne or his delegate
10(3). To attend hospital in case of emergency or doctor's surgery - evidence to be
provided to D/Sgt Glen Browne or his delegate
10(4). To possess or use one mobile telephone - the telephone number of which is to be provided to D/Sgt Glen Browne or his delegate within 24 hours of purchase. Any
breach to result in an automatic revocation of bail
11. Not to associate with any person(s) included on a list of names which may be provided by the OIC or his delegate
12. Not to contact any inmate in a NSW Correctional Centre
These conditions have been varied from time to time but they have remained substantially the same since 27 November 2014. For a brief period during the pre-trial hearing (9 February 2016 - 3 March 2016), the condition amounting to house arrest was softened to be more in the nature of a curfew. On the plea of guilty being entered, the house arrest condition was reinstated.
It is significant to note that the show cause requirement was not yet in force at the time of Campbell J's decision. Accordingly, his Honour did not address that question. However, a perusal of his Honour's thoughtful judgment shows that the findings that motivated his Honour to grant bail, in spite of unacceptable risks as his Honour found them to be, have been proven to be correct and well-founded.
In spite of the length of the adjournment, there have been no incidents at all in which the respondent has breached bail. She has completely complied with the bail conditions for a total period (that is including the period after her initial arrest) approaching two years, noting that she was in custody for one month of that period.
The respondent relies on a combination of circumstances in her attempt to establish that she has shown cause why her detention is not justified. The strict compliance with the onerous bail conditions is one of the critical factors upon which she relies.
In the present case, in addition to entering a plea of guilty, the respondent has offered to give evidence against her co-accused. A confidential exhibit, exhibit AC-6, shows that the assistance that she will provide is extensive and may assist the Crown in establishing the guilt of the five accused who remain on trial in relation to a number of very serious charges.
The Crown accepts that this is a relevant matter in considering the combination of circumstances that might satisfy the show cause requirement. However, the Crown also submits that it is insufficient to discharge the heavy onus that arises in this case.
In my opinion, her offer of assistance is relevant in a number of ways. First, it demonstrates that she has extracted herself completely and at some personal risk from the particular criminal group with whom she committed the offences. While the evidence suggests that she has had contacts with other criminals in the past, including the aforementioned Mr Hamzy held in Supermax at Goulburn, there is nothing to suggest that she has maintained those contacts since she was granted bail in April of 2014. Indeed, one of the conditions has been not to contact any inmate in a New South Wales correctional centre and one would have thought that a breach of that condition, if it existed, would have been known. Second, it means that she may be in physical danger or at risk while on remand. The violent capacity of the group against whom she is to give evidence is well-documented. There is evidence before me on the pre-trial hearing of some members of the group planning to kill other members of the group, including this respondent, if they became informants or, as it is put, rolled over.
The stringent bail conditions that have been in place to this point, including what was for a very lengthy period of time house arrest, then briefly a curfew, and the lack of any breach throughout that time, is, as I have said, one of the primary bases upon which it is submitted that cause has been shown. One of those conditions has been emphasised in particular by Mr Khatiz and that is the fact that the respondent's mother has entered into an agreement with surety to forfeit the sum of $1.4 million if the accused fails to comply with her bail undertaking. As I understand it, that surety is secured by a charge of some kind over the respondent's mother's house. That is a significant motivator for the respondent to continue to comply with her bail and to attend at court for sentence.
Another matter relied upon by the respondent are the steps that she and her solicitor have taken since the plea of guilty was entered. In particular, in less than a week, steps have been taken to ensure that the sentencing proceedings occur quickly and without unnecessary delay. So it is that a psychiatrist, Dr Furst, has been engaged and is available, at least while the respondent is at liberty, to consult with her on 14 March 2016 and to provide a report by 24 March 2016. Similarly, a forensic psychologist, a Mr Borenstein, has agreed to accept a brief and has arranged to meet her in order to provide a report within the next two or three weeks. Finally, in spite of the fact that her original choice of Queen's Counsel is not available, she has engaged alternative Senior Counsel, Mr Dhanji SC, who is available to appear at the sentence hearing in around three weeks from today.
Both the experts and Senior Counsel are available on 29 March 2016 and the matter will be ready to proceed on that date. Mr Khatiz says, or implies (and based on my own experience I accept), that this is unlikely to be the case if bail is refused. For example, Mr Khatiz tells me - and again I accept it from him - that Dr Furst's usual delay in arranging appointments is something like eight or nine weeks. The prospect that Senior Counsel and both experts will be able to attend on the respondent while she is in custody within that short time frame seems to me, based on my experience in the criminal law, to be most unlikely. That is a matter of some significance to the Court because it means that the trial of the co-offenders, which was scheduled to commence next Monday, will only be delayed by a period of around two to three weeks. Until she is sentenced, the respondent cannot give evidence either in the trial proper or on what I consider to be the almost inevitable, if tightly constrained, Basha inquiry that will be no doubt applied for by each of the accused: see R v Qaumi & Ors (No 2) (Basha Inquiry) [2015] NSWSC 1715.
The learned Crown Prosecutor argues that this is a matter that ought not to inform the decision as to whether the respondent satisfies the show cause test. He submits that s 16A is restricted to matters personal to the offender. While I accept that this is certainly not a determinative matter in respect of this application or even bordering on the most important matter under consideration - let alone determinative of the resolution of the whether the show cause test is satisfied - I am not able to accept that the broad terms of s 16A are so constrained.
It is certainly true that the circumstance is a most unusual one and neither counsel, nor I, nor my staff have found a case in which such a factor has played a part in a Court's consideration of an application where s 16A is engaged. Nevertheless, I am of the view that it is a factor that can play some part in a determination of whether the respondent has "shown cause why her detention is not justified". A further delay in the joint trial affects not only the accused but the many victims and witnesses who have an interest in seeing justice being done expeditiously. As I have said, this is not a determinative factor but it is one of the many factors that lead me to conclude that the combination of circumstances here arising are so unusual that in spite of the inevitability of a long gaol sentence, the respondent should remain on bail for the three weeks in advance of the sentencing proceedings.
The matter is also relevant, as Mr Khatiz submits, because the very short period between now and sentence reduces the risks that the Crown identifies for the purpose of s 19.
Bearing in mind the requirement that the two tests not be conflated, I should state that I do not accept that the respondent is a flight risk or at risk of committing further serious offences or of interfering with witnesses. I do not believe that continuing her bail on onerous conditions endangers the victims, individuals or the community. That is not a conclusion under s 19 but, rather, my finding of fact relevant to the show cause requirement. This finding is based on the respondent's conduct while on bail from 2 April 2014 until 27 October 2014 and from 27 November 2014 until today. She will never have a greater incentive to behave herself than she has between now and the sentencing date, which will be 29 March 2016.
For all of those reasons and taking those matters in combination, I am satisfied on balance that the respondent has shown cause why her detention is not justified.
It is necessary to address, albeit briefly, the bail concerns and unacceptable risks that arise under s 17 and s 19 of the Act. As I have said, the learned Crown Prosecutor identified first as a bail concern and then as an unacceptable risk the possibility or fact that she may fail to appear on her sentencing hearing (see s 19(2)(a)); secondly, that she may commit a serious offence (see s 19(2)(b)); and thirdly, that she may endanger the safety of victims, individuals or the community (see s 19(2)(c)). As I have said, the Crown did not submit that she was likely to interfere with witnesses or evidence. In view of her extracting herself from the criminal group with which she was previously involved, that last concession is one that I readily accept.
The structure of the Act is that the first thing that a Court does is to identify bail concerns. I accept the Crown's submission that there are bail concerns of the kind that I have just identified. However, the Act goes on in s 19 to require a consideration of whether those concerns are "unacceptable risks". If they are unacceptable risks, s 19 provides that the Court must refuse bail. In coming to that determination, the Act requires, by s 18, a certain number of identified factors to be taken into account. They are in s 18 and it is an exhaustive list. I will not articulate one by one the matters in that section, but I indicate that I have considered and taken into account those matters where relevant.
I think that the reasons that I have given for finding that she has shown cause disclose the reasons that I have come to the conclusion that the kinds of conditions that are currently in place, and indicating that if the Crown makes an application I would be inclined to add an enforcement condition under s 30 of the Bail Act, to mitigate the bail concerns such that they do not rise to the level of being unacceptable risks. For those reasons, I will dismiss the detention application brought by the Crown. I will continue the bail as it presently is.
[Following my announcing that decision, the learned Crown Prosectuor submitted that an enforcement condition relating to the curfew or house arrest condition was now appropriate. Mr Khatiz did not submit to the contrary and I agreed that such a condition was appropriate.]
Accordingly, I make the following orders:
1. Detention application refused.
2. Pursuant to s 50(4) I affirm the current bail and vary it as follows: On the application of the learned Crown Prosecutor, I impose the following enforcement condition relative to what might be called the curfew condition or house arrest condition and it is this:
The respondent is to present herself at the front door of her premises at the direction of any police officer to confirm compliance with the curfew condition. Such a direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so having regard to the rights of other occupants of the premises to peace and privacy.
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Decision last updated: 13 December 2016